Wall v. Astrue

ORDER EDUCATION ASSOCIA- POCATELLO In accordance with the mandate of the TION; Association; Idaho Education Supreme Court Ysursa v. Ed- Pocatello Fighters Idaho, Professional Fire — Association, -, ucation U.S. Inc.; Employees Service International 1093, 1101, (2009), S.Ct. 172 L.Ed.2d 770 687; Union, AFL-CIO, Local Plain- judgment of the district court is re- tiffs-Appellees, versed and the case remanded with in- v. structions to judgment enter for defen- HEIDEMAN, Mark in his official ca- dants on government the local claim. pacity County as Bannock Pros-

ecuting Attorney, Defendant, Ysursa, capacity Ben in his official as Secretary of for the of Ida- State State

ho; Wasden, Lawrence in his official

capacity Attorney as General for the Idaho, Defendants-Appel-

State of WALL, Plaintiff-Appellant, Joan lants. No. 06-35004.

United Appeals, States Court of ASTRUE, Michael J. Commissioner of Ninth Circuit. Security,* Social Defendant- Appellee.

April Collins, Jeremiah A. Esq., Bredhoff & No. 06-1029. Kaiser, PLLC, DC, Washington, John E. United Appeals, States Court of Rumel, Association, Esq., Idaho Education Tenth Circuit. Irish, Young

Debra Esq., John F. Green- field, Boise, ID, Esq., Chanin, Robert H. March Scott, DC, Esq., Washington, Judith A. for Plaintiffs-Appellees. Carlson, Esq.,

James D. Michael S. Gil- more, Kane, Esq., Esq., Brian P. Office of General, Boise, ID, Attorney Idaho

Defendants-Appellants. CANBY, JR.,

Before: WILLIAM C. A. TASHIMA, WALLACE and CONSUELO CALLAHAN, M. Judges. Circuit * 43(c)(2), R.App. appellee Pursuant to Fed. P. Michael J. in this action. Astrue is substituted for Jo Anne B. Barnhardt

**

Submitted on the briefs:

** 34(f); examining appellate 34.1(G). After R.App. briefs and rec- P. 10th Cir. R. The ord, panel unanimously has determined case is therefore ordered submitted without grant parties’ request for a decision on argument. oral argument. the briefs without oral See Fed. Newall, Springs, District Court for the District of Colorado. Colorado Frederick W. CO, Plaintiff-Appellant. for The district court—after what was obvi- ously thorough review the record— Leone, Attor- J. United States William sup- determined that substantial evidence Bohn, Assistant United States ney, Kurt J. ported the ALJ’s decision and affirmed the Kraus, Special H. Attorney, and Thomas agency’s ruling in December 2005. Claim- Denver, Attorney, Assistant United States appeal. ant then instituted this CO, Defendant-Appellee. Security The Administration Social uses HOLLOWAY, HARTZ, Before five-step to determine framework wheth

BALDOCK, Judges. Circuit er a claimant is disabled under the SSA. BALDOCK, Judge. 416.920; Circuit § 20 v. C.F.R. see also Allen Barnhart, (10th 1140, 1142 357 F.3d Cir. in Febru- Joan Wall was born Claimant 2004). suit, In present alleg the Claimant a recently most worked as ary 1942. She in principle ways. es the ALJ’s erred three 1997 for MCI from October telemarketer First, alleges the ALJ failed to Claimant 1998, and as a customer service April to proper make a step three determination April Telequest for from representative only Aplt. adequately 1999. See Admin. because he failed 1998 to October (hereinafter App.) at 111. Claimant impairments, mental consider her but also in when a injury August suffered 1995 develop the in administrative record the rear end of the vehicle Cadillac struck Second, regard. argues Claimant the ALJ In addi- driving. See id. she concluded, four, incorrectly step tion, injured August in an Claimant was capable performing past is rele in a flooded restroom. 1999 fall work Third, vant work as telemarketer. dispute parties at 330. The do not suggests applied the ALJ an in sought neither nor that Claimant has en- proof weighing correct standard of the late 1999. gaged in substantial work since credibility testimony. ju of her We have supple- for application

Claimant filed § 405(g) risdiction under 42 U.S.C. and 28 security social income benefits mental § 1291. Because we conclude the U.S.C. In disability based on October (1) duty develop already no the ALJ had 2002, Security February the Social Admin- (2) case, record in this utilized extensive claim, initially conclud- istration denied (3) standards, provided a proper legal precluded if ing that even Claimant was decision, explanation for his sufficient work, relevant performing from (4) findings by ultimately supported made work in the perform she could still other evidence, affirm. substantial record we economy. national See id. at 84. Claim- hearing subsequently ant received before I. of that May an ALJ October explanation a short begin with We year, the concluded was not disability Security Administration’s Social meaning of the disabled under the Social analysis and our standard of review. Un- (SSA). January Security Act Act, Security a claimant is the Social der request denied Appeals Council “any to do disabled if she is unable sub- Accordingly, review. the ALJ’s deci- activity by reason of gainful stantial Security Adminis- sion stands as Social physical or mental medically determinable ap- purposes tration’s final decision for expected ... can be impairment which Barnhart, peal. Blea v. 466 F.3d less period of not (10th Cir.2006). last for continuous challenged 908 416.905(a). § 12 months.” 20 C.F.R. in the than agency’s decision United States 1052 (10th Astrue, 515 F.3d 1070 Cir. framework the Social Securi- five-step

The 2007). to determine uses ty Administration proceeds are met these conditions

whether “Substantial evidence is such relevant § 416.920. as follows. See C.F.R. might evidence as a reasonable mind ac agency to deter- Step requires one cept adequate support a conclusion. “presently en- mine a claimant is whether scintilla, than a requires It more but less gainful activity.” Al- gaged substantial Astrue, preponderance.” than a Lax v. not, len, agency at 1142. If 357 F.3d (10th Cir.2007) (cita 489 F.3d consider, two, step whether proceeds to omitted). tions Our determination of medically impair- “a severe a claimant has ruling supported whether the ALJ’s is impairment Id. An impairments.” ment or upon substantial evidence “must be based regulations applicable under the is severe Washington the record taken as a whole.” physi- limits a claimant’s significantly if it Shalala, Cir. ability perform work cal or mental basic 1994). Consequently, we remain mindful 404.1521. At activities. See C.F.R. is not substantial if it is “[e]vidence three, step the ALJ considers whether a by overwhelmed evidence in the rec other medically impairments claimant’s severe Barnhart, 1257, Grogan ord.” v. 399 F.3d a in equivalent are condition “listed (10th Cir.2005). 1261-62 disability regula- relevant appendix of the Allen, F.3d at 1142. If a claim- tion.” II. a impairments equivalent ant’s are not To demonstrate that the record is suffi- consider, impairment, the ALJ must listed ciently developed and the ALJ’s find- four, impair- a step whether claimant’s evidence, ings supported by are substantial prevent performing ments her from we proceed opinions summarize the of id. if a past relevant work. See Even staggering array experts of whose agency impaired, claimant is so consid- findings in are reflected the record on ers, five, step possesses whether she case, appeal. In this the record consists of capability sufficient residual functional than pages. more seven hundred The perform other work in the national econo- great bulk of document pages these Claim- my. See id. history. ant’s extensive medical review of the ruling Our district court’s security in a social case is de novo. See A. Barnhart, 729, Fischer-Ross v. 2000, From Dr. 1996 to Kenneth Finn (10th Cir.2005). Thus, indepen- we During treated much of Claimant. dently determine whether the ALJ’s deci- work, period, Claimant continued to al- sion from legal sup- is “free error and times, though, at complained of terri- Id.; ported by substantial evidence.” see See, pain. ble e.g., App. early at 550. As (“The 405(g) findings also U.S.C. 1996, diagnosed Dr. Finn Claimant with Security Commissioner Social as to strain, strain, a cervical thoracolumbar fact, if supported substantial evi- disturbance, myofascial pain, sleep conclusive.”). dence, Although shall be we tension headaches. Dr. See id. will reweigh retry “not the evidence or Finn’s last characterization of case,” Claimant’s “meticulously we examine the rec- condition, whole, in indicates that he be- including anything ord as lieved may undercut or detract from the Claimant had cervical strain with ALJ’s findings myofascial pain if residual chronic order to determine the sub- ten- stantiality Flaherty test has been met.” sion headaches. See id. at 539. He indi- “long history of neck noting were ter of these conditions that both cated herniation. C5-6 disk Dr. Lazar stated that Claimant had pain,” to Claimant’s related concluded motion,” Dr. Finn also but spine “decreased cervical his and left knee a lumbar strain had examination showed “no evidence disk strain, underlying posterior medial with an herniation or foraminal encroachment.” he found no id. But meniscal tear. See “surgical He no Id. at saw solu- compromise.” “neurologic of a evidence pain.” tion to neck Id. at 464. [Claimant’s] Finn stated surgery, Absent Id. In 1997 and Claimant saw Dr. maximum medical reach Claimant would pain, Murk in to neck as well Steve three to six approximately improvement in her arms. Dr. as numbness Murk id. at 540. weeks. See clear found Claimant’s mental status be placed Dr. Finn In December guarded her cervical and noted that she of work restrictions. series range of motion. See id. 469. His (1) that Claimant should He indicated radiographic examination of Claimant’s (2) sedentary category; in a work work “very slight flattening studies indicated a on an occa- pounds than ten not lift more [spinal] cord” no “cord of the ventral but (3) basis; be able to alternate sional “small cen- compression.”1 minutes, in- sixty every forty-five to tasks appar- tral which was displacement,” disc standing, walking; cluding sitting, ently had not diagnosed first (4) positions, such as not remain static Dr. Murk changed. Id. at 470. character- than driving, for more sitting, standing, myo- chronic ized Claimant’s condition as forty-five sixty minutes. See id. 470, at pain syndrome. See id. 473. fascial 1998, Finn stated that August In Dr. surgical He believed that intervention a full sched- could maintain work Claimant he help pain; would not Claimant’s instead ule, that em- but he indicated Claimant’s undergo physical recommended she thera- that she had two ployer should ensure py. id. at 470. give in days off in a row order recuperate each week. sufficient time B. February at 566. Sometime before 1999, all Dr. Finn rescinded of Claimant’s Dr. Kent began to see Rober- Claimant “I can continue work restrictions: feel she fall. Dr. August son after her Rober- Id. at 551. to work without restrictions.” chronic cervi- diagnosed Claimant with son myofascial pain, cal and lumbar bilateral per- Dr. Richard Lazar In October knees, joint in a disease degenerative Dr. Finn in formed a consult for tear, a knee right knee meniscal left pain. neck He described Claimant’s changes.2 degenerative tear with meniscal as clear and indi- mental status Claimant’s agreed Dr. See id. at 330. Roberson she was alert and oriented cated that Dr. consulting physician, a Af- the view of and time.” Id. at 466. “person, place, pain Myofascial pain describes in muscles 2. X-rays taken in 1997 and 1998 showed 1. or con- from inflamation of the fascia at C4-C5 derived Claimant had a midline herniation them. See Cleve- impression nective tissue that covers on the ven- that caused minimal Clinic, http://www.clevelandclinic.org/ spinal compression. at land tral cord but no health/health-info/docs/3600/3662.asp? possibly was 487. This herniation “Myofascial ... is “slightly larger” appeared in index= 12054. in 1998 than it responsible painful Nothing disorder at in the record common Id. 478. Jennifer E. many pain clinic visits.” See Dr. enlargement had indicates that this subtle Finley, http://www.emedicine.com/PMR/topic adverse effects on Claimant’s condition. id. at See, Lesnak, problems e.g., that with her mistic about her condition. id. cervix, back, longstand- and knees were 246^48. opinion, id. at 330-31. In his ing.3 See Although recognized Dr. Evans tear suffered her left knee Claimant depressed and suffered from Claimant injury. her 1999 See id. at 331.

was due to pain, intractable he most often character gave person impair- a whole He psychological ized her condition as reactive rating of 10%. See id. ment 250-54, 247-48, depression.4 See id. at February specifically Dr. Roberson con- 256-57. Dr. Evans stated that cluded that Claimant was at maximum he did not believe that Claimant suffered improvement. depression See id. at 331. He from “clinical in terms of [her] permanent depression being stated that Claimant “had no debilitating.”5 260; injury restrictions” from her 1999 and indi- contrary, see also id. 255. On the “really cated that she return to Id. at he very could work. believed is appears capable In what to be an at- and she not need to be in a does Finn, however, tempt dependent relationship to defer to Dr. Dr. either with her erroneously providers anyone health care Roberson indicated or with else.” Accordingly, Claimant should follow the restrictions Dr. Id. at 248. Dr. Evans fo put place Finn transitioning had 1997. See id. cused his efforts on 330. The record demonstrates that Dr. back into the workforce and a more inde Finn, pendent style living, lifted these restrictions sometime be- in which he be February fore 1999. See id. at 551. lieved “quite Claimant would function 249; 246-47, Id. at well.” see also Id. at Dr. November Roberson re- 249, 251, 255, 262. Evans, ferred to Dr. James psychologist, help Unfortunately, Claimant deal with Dr. Evans found that pain. multiple chronic See id. at 497. Dr. factors prog- hindered Claimant’s First, Evans treated Claimant over nine month ress. Evans indicated period, beginning ending 1999 and in Claimant was hypochondria- “somewhat cal,” somatization,” 2000. At the “significant onset of Claimant’s treat- evinced ment, Dr. Evans’ records show that Claim- “delayed recovery demonstrated 257, exhibiting signs depres- 251, Second, ant was of serious symptoms.” Id. at 263. sion, including not out of Dr. getting bed on Evans felt that Claimant was not con- days. some See id. at 271. Dr. trolling pain experienced Evans she but was initially questioned allowing “pain also whether Claimant to control her.” Id. at Third, a cognitive had disorder. See id. at 269. 257. he noted had be- treatment, of dependent Over course Claimant’s come somewhat on her health- however, Dr. very opti- Evans became care providers and the attention she re- 3. In Dr. Roberson also referred Claim- or other environmental factor. See Dorland's ant to Dr. Tanweer Khan an assessment of Dictionary Medical for Healthcare Consumers spine and left knee. Dr. Kahn found an (2007). measuring ap- "anterolisthesis of L4 over L5 proximately App. at 5mm.” 374. He noted noted, occasion, 5.Dr. Evans also on that degenerative changes, mild to moderate with symptoms Claimant exhibited fear and anx- of space height. a minimal loss of disc See id. at iety. anxiety His notes indicate that this con- 374-76. Dr. Khan did not find abnor- possibility surgery, prospect cerned the of malities in Claimant's left knee. See id. at work, returning winding and the down See, providers. of treatment with her medical 246, 247, 248, 250, 253, 263, e.g., App. at depression generally 4. Reactive is a transient precipitated by condition a stressful life event a gave person 267. Erosnowski Claimant whole them. See id. ceived from 14%, impairment rating highest im- Fourth, concluded Claimant Dr. Evans pairment rating Claimant received from being comfortable inactive was “too any physician. See id. at 305. receiving her lost much too comfortable at 260. He stated Claim- wages.” Id. In October Dr. Roberson referred secondary gain” which ant had an “issue of Pak in regard Claimant to Dr. John to her her to very difficult to motivate made it pain. knee id. at 321. Because to work. Id. return inconsistent, complaints were Dr. Pak ordered an MRI of her knee. Schlender, left physi- a July In David diagnosed See id. at 320. He evaluated Claimant’s func- therapist, cal only right effusion of the knee with “mild two-day capacity period. tional over and no effusion of the left.” Id. at 316. He that Claimant was id. at 502. noted Although stairs, respond Claimant did reach, up and down able to walk knee, injection in right cortisone Dr. activities, fine motor as well as perform Pak stated that she “at maximum occasional place and stand with walk improvement medical and she should have times, At Mr. shifting. See id. at 503-05. impairment upon range based of motion had diffi- stated Schlender deficit well tear.” as meniscus understanding simple commands. culty specify Dr. Pak did not what he believed indicated, however, He percentage impairment maintain a Claimant could physically be. See id. level, frequent breaks sedentary work day, if was not throughout the work Dr. December Lawrence Les- pounds than ten required to lift more nak, yet physician, another conducted a an occasional basis. See id. Claimant, physical examination of re- records, and viewed Claimant’s medical 2000, Dr. Roberson re- September prepared independent an medical evalua- Audrey Dr. Krosnowski ferred Claimant to pre- tion of her condition. Dr. Lesnak for a medical consultation. Krosnow- summary pared extensive of Claimant’s (1) a concluded that Claimant had ski records, dating from 1988 to 2000. (2) meniscus, in her medial transverse tear See id. at 175-80. In his review of Claim- moderately cartilage mildly to attenuated history, Dr. ant’s medical Lesnak noted horn vicinity posterior in the of her been treated for Claimant had (3) meniscus, medial a mild to moder- early and neck as as 1990. See her back joint id. at 299-300. ate size effusion. See id. at 176. conducting an MRI of Claimant’s After Mitchell, time, a Joseph Dr. Krosnowski found “5 Dr. spine, lumbar Around this degenerative I anterol- also evaluated Claimant. See grade psychologist, mm L4-5 with gross diagnosed ... evidence of L4-5 id. Dr. Mitchell Claimant isthesis without sug- adjustment id. He Id. at Dr. disorder.7 See degenerative changes.”6 301. adjustment nonpsychotic upper An disorder is 6. describes the vertebral 7. Anterolisthesis body slipping onto of the vertebrae forward and related to that is short-term disturbance graded slippage is on a the one below. This adjustment classified with an stress. Persons 4. mild scale from 1 to Grade 1 is classified as judged disproportionately disorder are to be grade slippage, while as severe is classified intense, overwhelmed, overly in their re- Center, slippage. Medical See Cedars-Sinai sponse an identifiable stressor. See Dr. http://csmc.edu/5727.html. Dr. Krosnowski's Benton, http://www.emedicine.com/ Tami D. spi- September diagnosis Claimant's med/topic3348.htm. identical to that made Dr. nal condition is App. 374. Khan in October 1999. See at tests, “unwilling factors were af- certain as Claimant was psychological gested physical symptoms perform any activity may and to that she feels fecting Claimant’s undergo psycho- cause her discomfort.” Id. at 181. Dr. recommended Claimant management.8 therapy pain focused on noticed that exhibited Lesnak Claimant Kaplan, Dr. Glenn anoth- id. In significant guarding when he examined her Dr. evaluated Claimant. psychologist, er range greatly knees and that her of motion had reached Kaplan found that Claimant increased when she was distracted. See regard maximum improvement Dr. During testing, id. muscle Lesnak abnormalities, which “psychological to her “gave poor effort.” recorded Claimant Id. at 177. depression.” included Id. at 182. He also indicated that Claim- multiple pain ant behaviors and “exhibited report Dr. Lesnak’s also indicated nonphysiologic findings, including posi- 4/5 headaches, complained of related Claimant signs.”10 tive Waddell neck, early as problems with id. at 176. In Claimant 1995. See Dr. Lesnak’s December 2000 evaluation Raper regard visited Dr. Kenneth pain concluded that chronic Claimant had knees, pain began in her which to bother neck, muscle, symptoms trapezius in her after her 1995 car accident. See arms, back, knees, lower which were Raper diagnosed id. at Dr. longstanding nature. See id. joint degenerative with disease. See id. im- Dr. Lesnak believed that Claimant’s time, same 176. Around this fully pairments were existent before also saw Dr. E.J. Ausman for left hand although year Claimant’s fall at work that Dr. and arm numbness. See id. Ausman may aggravated have them.11 a thoracic diagnosed Claimant with strain opinion, In his Claimant had been secondary radiculopathy.9 See id. “very dependant provid- on her healthcare ers over the decade” and had “chron- objective Dr. findings, his Lesnak most, pain all, ic ... if documented for cooperative indicated that Claimant was Consequently, of that time.” See id. Dr. during on oral interview but needed to be opined Lesnak Claimant had reached answering multiple ques- redirected when tions, improvement maximum medical and that engaged tangential as she in some pain experiencing the level of she was speech. See Id. to his Claimant, “essentially ques- her baseline.” Id. He physical examination of Les- perform credibility nak noted that she declined to tioned Claimant’s based on cer- www.neuroanatomy.wisc.edu/SClinic/ 8. Dr. referred Claimant Dr. Ev- Roberson Radiculo/Radiculopathy.htm. ans, psychologist, purpose for this same 1999. See 10. Waddell signs pa- are indications that a nonorganic pain. They tient has are used to 9. A inju- strain refers to a soft thoracic tissue identify patients may require who detailed ry region spine, in the of the thoracic which psychological assessment. Three or more signs clinically signifi- causes acute Waddell are deemed or subacute in the back. Vogelgesang, http://www. cant. Dr. Scott See Patients with a thoracic strain have muscle int-med.uiowa.edu/Divisions/Rheumalology/ spasms range a and limited of motion. See LowBackPain.html. Rosenberg, http://www.mdconsult. Dr. Darren com/das/book/body/87764725-2/0/ example, 11. For Dr. Lesnak noted that Claim- "Radiculopathy” refers to dam- 1189/46.html. physical therapy ant had been "referred to for age by injury caused to a nerve root to the an myofascial pains approxi- chronic cervical ... spinal University cord. of See Wisconsin- August mately prior to one month Page, http:// reported injury.” App. Madison Neuroscience Resource work at 185. Claimant, made, tal page which tests reviewed one of tain statements report, prepared medical Dr. Kawasaki’s and an information conflicted with Dr. Lesnak evaluation of mental id. at 185-86. abilities. records. See that Claim- Dr. Although that he did believe See id. Stockdale stated “any work restric- required permanent recently ant was aware that Claimant had Id. at 185. tions whatsoever.” treated another Dr. psychologist, been Evans, Dr. none of Evans’ records were Kawasaki In Dr. Robert March available for his review. made See id. rec- and her medical examined Claimant Dr. During the course of Stockdale’s exam- ords, medi- independent prepared and ination, prob- said that she had Dr. Kawa- of her condition. cal evaluation words, and organizing, finding losing lems very guarded noted that Claimant was saki things. See id. 237. She rated herself range of mo- he tested her cervical when having problems mild to moderate with spine. lumbar See tion and examined her headaches, disorientation, thinking, slow concluded that Claim- id. at 188. He also apathy, and patience, anger, short-term during effort muscle test- poor ant showed memory loss. See id. Claimant also re- “complain[ed] pain of with ing and ported normally glasses that she used maneuvers.” Id. at 188-89. all bring read she did not them to her but impressions/diag- list of Dr. Kawasaki’s Dr. appointment with Stockdale. See id. had a that he felt Claimant noses shows back, trapezi- history pain of chronic for and perform- Claimant’s score verbal cervix, muscle, as chronic um as well intelligence ance was borderline. See id. headaches, and dia- migraine hypertension, intelligence full score in the Her scale at 194. Dr. Ka- mellitus.12 See id. betes In mentally range. deficient See id. Ro- agreed with Drs. Lesnak and wasaki memory, terms scores thoracic, cervical, berson that Claimant’s ranged widely mentally from the deficient back, shoulder, psychological arm pain average. id. at 239. range high in nature. longstanding were issues Based on the limited information he had Kawasaki, however, Dr. attrib- id. at 195. available, Dr. could not deter- Stockdale medial meniscal tear uted Claimant’s left cogni- apparent mine whether Claimant’s posterior of the oblique horizontal tear organic. were tive difficulties right meniscus to her horn of the medial id. He indicated 1999 fall at work.13 See a diagnosed Claimant with Stockdale injuries a “14% gave that these NOS, unknown, etiology cognitive disorder person impairment.” Id. whole psychologi- a as well as disorder factors, symptoms consistent with cal Dr. Steven Stock- November anxiety dale, major depression and disorder.14 psychologist, performed a few men- Surgeons, http://orthoinfo. summary my Orthopedic 12. Dr. Kawasaki's of Claimant’s aaos.org/topic.cfm?topic=A00358. history support impres- does not his sion/diagnoses chronic that she suffered from (not 14."Cognitive otherwise migraine App. at Disorder NOS headaches. See fact, patient only physi- specified) diagnosed when a has a be the is Dr. Kawasaki seems to cognitive impairment suggest syndrome that does record to Claimant suffered cian of delirium, dementia migraines. not meet the from criteria is] condition [This or amnestic disorders. specific injured parts medical condition commonly often due to 13. “One of the most knee, meniscus, Depres- wedge-like pharmacological reaction.” is a and/or sion-Guide.com, http://www.depression- rubbery major located where the cushion guide.com/cognitive-disorder.htm. leg Acade- bones of the connect.” American time, earlier. At that she stated that if Noting that some See id. down, her office had not shut she would than would [he] were “much lower scores working. have continued at See id. 185. way presented] expect [Claimant] Conflicting record evidence also exists as herself,” that “[i]t Dr. stated Stockdale quit job to whether Claimant at MCI important to review would be pain, simply because of her because she get Evans ... a sense records from Dr. not like did her work as telemarketer. any past assessment of her intellec- about See id. at memory functioning.” Id. Al- tual and intelligence though some of Claimant’s diagnosed pain Dr. Kras Claimant with low, expressed scores were Dr. Stockdale back, knees, in the lower and lower neck. able to the belief that Claimant would be findings at no See id. 243. She made focal manage any she received. See id. benefits during neurological id. exam. See degenerative joint Given Claimant’s dis- Lucy Dr. Kras exam- December ease, Dr. Kras believed Claimant suffered Claimant, Dr. Kawasaki’s ined reviewed Nonetheless, pain. from See id. at 244. report, prepared findings. written Dr. mobility she concluded that Claimant’s that Kras indicated when Claimant came “fairly good.” Dr. Kras found that physical in for her examination she was stand, walk, Claimant could and sit for six nurse, very friendly upbeat with the eight workday, out of hours in a normal appeared but she anxious and some- although may she noted that Claimant depressed spoke what when she to the need to fluctuate positions during between doctor. See id. at 242. physical time. opined See id. She further depending behavior also varied on whether (1) occasionally Claimant could lift or present. Apparently, the doctor was (2) carry bend, up pounds, to ten appeared getting to have Claimant trouble stoop, or crouch. See id. onto the examination table in a and walked bent over fashion when the doctor was in C. the area. See id. When the doctor was engaged Bethany Claimant Dr. present easy not had an Claimant time primary physician. Wallace as her id. getting higher x-ray onto a much table and obviously Wallace took Claim- walked in an erect Ini- fashion. See id. complaints ant’s seriously more tially, would cooperate with Indeed, previous than had her physicians. testing. muscle See id. 243. After appears Dr. Wallace to be the first treat- coaching, Dr. Kras reported ing physician give of record to achieved a score of five out five. See id. prescription for Lortab and Lidoderm

Regarding severity pain, of her (a patches, which dispense lidocaine local Claimant indicated to Dr. Kras that “her anesthetic).15 307-08, 326. Pre- pain kept working” job. her from her last viously, the record primar- shows Claimant Motrin, Id. at 241. This statement conflicts ily used otherwise known as Ibu- See, year profen, what Claimant told Dr. Lesnak a pain.16 e.g., relieve her id. prescription 15. Claimant received a for Vico- 16. The record contains some indication that din, occasionally hydrocodone, received various other another form of from an pain, including treatments for her Skelaxin emergency room doctor in 2001. See (muscle relaxants), Naproxen and Norflex suggests 235. One notation in 1997 also (Aleve), bag, Theragesic a refreezable ice taking night- Claimant was "one Vicodin at (used pain). cream to treat minor aches and help sleep, time” to but the record is See, 179, 342, 346, 395, 612, e.g., App. at physician pre- unclear as to which issued this treatments, however, appear None of these scription. Id. at 632. consistently in Claimant's medical records. 566, 607, 237, 241, 465, 538, January Corsello, 131, 188, Dr. Catherine on insu- government physician, prepared Dr. also started Claimant another a Wallace See id. at 311. to treat her diabetes.17 Capacity lin Functional Assessment of Claim- diag- ant’s mental condition. Dr. Corsello D. with a pain nosed Claimant somatoform or Security Administration’s At the Social disorder.18 See Id. at 165. She found physicians re- request, two additional moderately that Claimant was limited history to eval- Claimant’s medical (1) viewed ability understand and remem- severity of her condition. uate (2) instructions, carry ber detailed out de- January government an unknown (3) instructions, tailed maintain concentra- Capacity a Functional physician prepared (4) periods, complete tion for extended physical condi- Assessment a normal work schedule and at a perform physician a with the first tion. While pace consistent without an unreasonable assessment, signed this name of Jane periods. number of rest See id. legible. name is not See physician’s last Claimant, Dr. Corsello noted that physician concluded id. at 154. This forms, completing various “understood the had a disorder with primary back questions,” gave responses,” “coherent secondary diagnosis pain of knee etc.,” “good spelling indicating had specified id. at 154. She diabetes. See “adequate had cognition.” Id. at lift frequently should no that Claimant subjective 171. She found twenty-five pounds, than or more sit/stand complaints fully were “not credible” and hour eight for more than six hours an poor discounted evidence of Claimant’s Overall, this workday. See id. at 148. cognition. Id. Dr. Corsello indicated that physician concluded Claimant did have give did not effort dur- best medically impairment. determinable See ing testing capacity of her mental and that severity id. 152. She considered (i.e. Stockdale’s) Dr. her examiner’s find- symptoms, reported duration of Claimant’s ings would have different if he had been however, disproportionately great to be been able to review the notes of Claimant’s in a compared expected to those when Dr. psychologist, Evans. See id. Cor- of her condition. See id. Accord- person that Dr. believed Claim- sello noted Evans concluded Claimant’s ingly, physician this fully capable returning ant was to work. symptoms only “partially reported were See id. at 249. While Claimant exhib- did credible” and that her condition not could, symptoms that psychological “limit her from all work activities.” Id. ited Indeed, Thus, agency it and indicates that could not consider a notation Dr. Finn pursuing ... may Claimant was “not interested in neither we. management” than Mot- medication —other pain. Id. at 566. rin—for are characterized 18. Somatoform disorders appropriate by physical complaints which rely appeal, on three 17. On Claimant seeks physical medical evaluation fails to reveal highly cryptic Dr. Wal- short and notes from complaints, pathology, or when such lace, which Claimant entered into the admin- resulting impairment, grossly in excess of is record the ALJ denied her istrative after expected patient's diag- be from a what would only particular claim. The note of relevance type of somato- noses. A disorder is one appeal to this indicates Claimant suffered psychological in which factors form disorder type injury some of closed-head and had onset, severity, play important in the role memory problems. App. at short-term exacerbation, pain. IV.A.2.b, or maintenance of explained in Part 15. As infra http://www. Protagoras-Lianos, Dr. Dolores chronologically note relevant. See 20 is 404.970(b); 416.1470(b). emedicine.com/ped/topic § 1706.htm. C.F.R. work, that she suffered

times, ability professional, her health but interfere with at “memory from some loss.” Id. 47. that Claimant could Dr. Corsello concluded involving sig- adequately perform work Claimant, point, At one the ALJ asked judgment. nificant See id. complexity directly, why she could not work. quite and fre- Claimant stated headaches restroom, which are

quent trips to the III. necessary high, sugar when her level is id. at prevented working. her from See ini- Security Administration The Social medications, pain 51. tially application for denied Claimant’s hydroco- took Claimant indicated she security supplemental social benefits. Upon done.19 See id. at 69. close Subsequently, agency granted Claim- ALJ, questioning by admit- ALJ, provid- an hearing ant a before thus prescribed any that she had not been ted ing opportunity to flesh Claimant with migraines medication used to treat the disability claim. proceed out her We complained. which she had earlier id. See at summarize the course of events Claim- only significant pain 52. The other hearing, administrative as well as the ant’s using treatments mentioned denying contents of the ALJ’s order injections in were cortisone her back and supplemental benefits. patches Lidoderm on her shoulders and knees. See Id. 69. A. ability When asked about her to sit for hearing in During the administrative prolonged periods, Claimant indicated that case, engaged in a wide- ability widely day day, her to sit varied ranging discussion with Claimant concern- that, generally, longer but she could sit for Upon ing thorough ques- her condition. periods put if she her feet up and took her ALJ, tioning by the Claimant stated that medications. See id. 54-55. Claimant herself, she was able to dress and bathe explained prescribed later that some of her gradually perform basic household tasks— stomach, upset medications so she laundry, cooking, cleaning such as —and regularly does not take them. See id. at up thirty drive for minutes at a time. addition, 65. Claimant indicated that See id. at 67. Claimant described un- pain disrupted sleeping See id. at dertaking general the same activities in result, aAs Claimant stated that November 1999. See id. at 499. When regularly naps took for fifteen to twen- ailments, physical ty throughout day. asked about her worst minutes headaches, Claimant mentioned migraine testimony After Claimant’s was com- neck, pain in her back her diabe- plete, opinion the ALJ elicited the of Dr. questioned tes. See id. at 44. When Manuele, Anthony expert. a vocational about her mental condition and treat- id. at Manuele identified ment she undergoing, Claimant stated relevant work as customer longer seeing that she was no a mental telemarketing.20 service and See id. at 74. Hydrocodone Drug is used to treat moderate to such as Vicodin and Lortab. See U.S. moderately pain. Agency, http://149.101.L32/dea/ severe It is the fre- most Enforcement quently prescribed opiate concern/hydrocodone.html. United form, hydrocodone States. In its marketed is always drug. Previously, combined with at least one other Claimant worked at a mess hall, frequently prescribed company, gym, The most combination for a furniture in a at a pairs hydrocodone acetaminophen. commissary, hairstylist. Ex- and as a amples hydroco- fittingly of medications that combine 237-38. Claimant described herself acetaminophen "jack-of-all-trades." done with are killers as a Id. at 238. tal impairments, spine, Dr. Manuele to assume a disorders of the The ALJ asked limited to seden- hypothetical individual and somatoform disorders. See id. He work, involving significant no com- tary impairments found that Claimant’s did not at lifting. See id. plexity and occasional requirements listings meet the of these inquired then whether 74-75. The ALJ that impairments and Claimant’s were not in the would be able to work person such a equivalent listing applicable the service or telemarket- fields of customer Fourth, regulations. id. the ALJ de- that Dr. Manuele indicated ing. See id. present termined that impair- Claimant’s telemarketing could work person such a ments at “approximately existed same service, the latter in customer as but not severity” engaged level of when she last id. at significant complexity. See involved in full time work. Id. at 28-29. Accord- by Claimant’s Upon cross-examination that ingly, he concluded Claimant could counsel, opined further that Dr. Manuele perform her relevant work as a tele- ability to en- hypothetical this individual’s ALJ, marketer. id. at 31. The telemarketing adversely would be gage in therefore, ruled Claimant was not dis- (1) if take more than affected she had abled, SSA, meaning under the and during twenty naps minute four fifteen that she was thus not entitled to receive (2) away move workday, frequently station, security supplemental social benefits. See opposed her mere- from work id. at ly engaging postural shifts. See id. IV.

B. In the ALJ issued a four- October alleges first that Claimant’s ALJ denying single-spaced opinion page, teen a proper step failed to make three deter- Eight claim. disability Claimant’s regarding alleged mental im- mination pages these summarize Claimant’s testi- sum, In pairment. suggests history. mony and extensive medical concluded, despite the ALJ should have First, stated that Claimant had history, that long and varied work engaged gainful activity in substantial suffers from a substantial mental disabili- application for benefits. since she filed her argues ty. regard, this Second, he summarized See id. (1) listing ALJ should have considered testimony and her extensive Claimant’s 12.05(C), retardation, covers mental which history and concluded Claim- (2) developed regard the record in to her knees, neck, problems ant’s psychological disor- cognitive and other back, and somatoform disorder Claimant’s (3) ders, whether her men- considered impairments. constituted “severe” combination, equaled impairments, tal Third, considered whether the ALJ impairment.21 listed For the reasons require- met the impairments follow, listings governing disagree. musculoskele- we ments of did not find that Claimant suf- argument that the ALJ should 21. The ALJ 12.05(C) cognitive listing step a "severe” disorder have considered three fered curious, challenge step two given has not Claimant does not is that Claimant raised Therefore, why any allegations appeal. Claim- of error in to the ALJ’s conclusion two, findings step step believes the ALJ should have considered two. At the ALJ ant listing condi- from "se- related to mental retardation —a concluded that Claimant suffered knees, neck, implicitly found Claimant impairments to her tion which the ALJ vere” related best, is, back, unclear. disorder. See did not somatoform suffer— good judgment.” Hawkins v. A. sonable (10th Chater, 1162, 1168 Cir. 113 F.3d 12.05, a claim- satisfy listing order 1997). such, an enti generally As ALJ is requirements ant must “meet[]” “rely tled to on the claimant’s counsel ... definition listing’s “capsule [as in a present structure and claimant’s case severity for prongs of the four well one as] way that the claimant’s claims are ade regula- as listed in the mental retardation Barnhart, quately explored.” Branum v. Lax, cap- at 1085. The tions.” Cir.2004). 1268, 1271 Noth listing 12.05 states: sule definition justifies excusing ing Claimant’s counsel significantly refers to “Mental retardation important duty from this here. The rec functioning intellectual subaverage general that the ord this case demonstrates ALJ functioning initial- adaptive with deficits in good judgment refusing exercised to ly during developmental manifested impair deeply delve more into the mental i.e., period; evidence demonstrates or emphasizes ap ments Claimant now impairment before supports onset of peal. Ill, age Subpt. 22.” 20 C.F.R. Ch. Pt. assuming preserved Even this P, severity App. prong 1. The found two, argument step rec- nothing 12.05(C) provision issue here —re- —the suggests satisfy ord Claimant can the basic verbal, quires showing per- of a “valid requirements listing of To come 12.05. formance, IQ full through or scale of 60 70 12.05, scope listing within the of a claimant physical and a or other mental impairment satisfy listing’s capsule defini- must an imposing significant additional and Lax, (explain- tion. See 489 F.3d at 1085 Lax, work-related limitation of function.” ing seeking that a claimant to come under F.3d at 1085. listing requirements 12.05 must meet the definition, of that listing’s capsule as well 1. severity as one of four Part prongs). of Importantly, Claimant al never listing capsule 12.05’s definition is the re- leged that she suffered men from severe quirement that a claimant exhibit subaver- disability tal hearing: at her administrative age general functioning intellectual before listing The ALJ’s failure to discuss twenty-two. age Nothing of See id. 12.05(C) is, therefore, unsurprising. in the record indicates that Claimant ex- fact, when the ALJ asked Claimant about signs subaverage general hibited of intel- any mental condition treatment functioning twenty-two. lectual age before currently undergoing she was Thus, App. the ALJ did not merely stated that she was not under the in failing applicability err to consider the psychologist care of a and that she suf 12.05(C). listing “memory fered from loss.” Although gave the ALJ Claimant’s counsel opportunities several to develop Claimant’s alleges Claimant also the ALJ case, Claimant’s counsel also failed to raise duty develop failed in his the adminis cognitive impairment the issue of a severe in regard cognitive trative record to her suggest required that the record devel “In psychological and other disorders. regard. in that opment See id. case, security disability social the claimant prove bears the disability.” burden required

ALJs are not to “ex sure, Flaherty, 515 F.3d at 1071. To be every possible inquiry haust line of in an disability hearings administrative are every attempt pursue potential line of ... “nonadversarial and the ALJ has a questioning. The standard an duty adequate is one of rea- to ensure that record is loss, disability hearing memory that she suffered from some developed during the raised.” a “mental impairment with the issues must be of a nature consistent Further, duty even if the “pertains degree severity justify sufficient to represented counsel.” Id. claimant is its consideration as the cause of failure duty develop the record is But an ALJ’s gainful obtain substantial work.” See, e.g., Barnhart, Henrie v. U.S. unqualified. Williamson Servs., (10th Dep’t Cir.2003) Health & Human (emphasis in original). Cir.1993) (recognizing 360-61 A impairment memory, minor of one’s duty that an has a “to ensure which most they age, individuals suffer as developed during the adequate record is does not rule out all substantial gainful (“In with the is disability hearing consistent activity. determining wheth- ”) added). (emphasis raised exists, sues impairment er a severe the Com- missioner considers the ‘effect’ of the im-

a. pairment.”). Neither Claimant nor her argued cognitive counsel ever that a im- inform an preconditions Several pairment contributed to Claimant’s inabili- duty develop administrative ALJ’s ty fact, 1071; to work. In when asked Flaherty, 515 F.3d at what record. See Hawkins, conditions hindered her looking nor from for 113 F.3d at 1167. Under circumstances, employment, Claimant stated that mi- may the ALJ reason mal back, graines, pain in her neck and ably rely identify the issue on “counsel prohibited working. diabetes her from See requiring development.” or issues further such, Branum, Moreover, App. at 44. As the ALJ could rea- 385 F.3d sonably that only claimant need not “raise” the issue assume Claimant’s stated memory that had develop, bearing ques- she seeks to but issue must loss “no on the alleged disability.” also be “substantial” “on its face.” Haw tion of Chambers [her] kins, Barnhart, “Specifically, 113 F.3d 1167. v. 1144 Shalala, Cir.2004); claimant has the burden to make sure see also Glass 43 is, record, (10th Cir.1994) there in the evidence sufficient (rejecting F.3d possibility a reasonable that a suggest duty inquiry the notion that an of ALJ’s is impairment Flaherty, severe exists.” claimants,” panacea requiring “a “re- 1071; § 405(g) F.3d at see also U.S.C. any matter versal where ALJ fails may only that order the (stating courts every line of potential question- exhaust Security Commissioner of Social to take ing”). showing evidence “upon

additional there is ^[1] new evidence which is material b. failure to the record in a and that there is incorporate prior proceeding”). ^[2] good such evidence into cause for the entire evidence of a record, event, Claimant cognitive impairment in the context of the failed to present Washing on face. was substantial its See Claimant, Because neither nor her coun- ton, (recognizing 37 F.3d at 1439 sel, memory argued loss contributed “[sjubstantiality depends upon of evidence” disability, the alleged to Claimant’s whole”). err, the “record taken as a precedents, did not under our de- of Drs. primarily points opinions develop record in this re- clining to 1071; as evidence that Stockdale and Wallace gard. Flaherty, 515 F.3d at Stockdale, Hawkins, 1167; Branum, mentally is disabled.22 Dr. 113 F.3d at 385 she only one psychologist, at 1271-72. saw Claimant While Claimant did state anecdotal, alleged cognitive deficiency relating is com- 22. All other evidence to Claimant’s “very capable.” He did not Claimant to be 248. App. occasion. See Accordingly, attempted help to the records Dr. Evans have access Ev- treating Dr. psychologist, engage independent most recent in a more diagnosed Dr. ans. See id. Stockdale style living, including a return to work. NOS, disorder cognitive See, 246-49, 251, Claimant with e.g., id. at factors, a psychological disorder with points also to a note written condition, symptoms general medical presented Dr. Wallace—which Claimant major depression recurrent consistent with Council after the ALJ had Appeals anxiety See id. at 239. disorder NOS. his evidence that rendered decision—as observations, however, own Stockdale’s cognitive impairment.23 she suffers from a findings light of Dr. Evans’ over Security only The Social Administration treatment, make clear period extended “new and material if considers evidence” men- that his dim evaluation of Claimant’s period evidence on or such “relates to weight. tal holds little See 20 condition before the date of the administrative law 404.1527(d) (explaining § how the C.F.R. judge hearing decision.” 20 C.F.R. Security weighs Administration Social 404.970(b). case, the ALJ issued opinions). his decision October 2003. See obviously Dr. Stockdale did not believe 17. Dr. to a head Wallace’s note relates diagnosis that his of Claimant’s condition injury Claimant sustained in November Notably, definitive. he observed that id. at 15. cogni- some of Claimant’s scores from her Because this evidence of Claimant’s al- testing tive “seemed much lower than [he] leged cognitive disability does not “relate[ ] expect way presented] would for the period to the on or before” the date the Accordingly, App. herself.” at 239. he decision, agency regula- ALJ issued his important noted that it “would be to re- tions the consideration of this prohibited any view medical records from Dr. Evans 404.970(b); § evidence. 20 C.F.R. any ... get to a sense about assess- Chambers, 416.1470(b); § 389 F.3d at ment of intellectual and [Claimant’s] mem- agency 1142^3. As the was not allowed ory functioning.” Id. A review of Dr. Ev- evidence, may this neither consider we: initially ans’ records demonstrates that he qualify, “If the evidence it plays does cogni- had some concerns about Claimant’s judicial no further role in review the functioning. tive 269. Dr. Ev- Commissioner’s decision.” Chambers 389 concern, however, in only ans noted this We, therefore, at 1142. conclude that meeting connection with his first with present Claimant failed to evidence of a Claimant. id. the nine month See Over Claimant, cognitive impairment that was substantial in period which he treated Dr. Accordingly, on its face. the ALJ did not Evans’ never indicated that Claimant had a Rather, failing develop in in cognitive disorder. he found err the record ing ry memory problems” had a from individuals who neither treat- with short-term in No- ing relationship any with the Claimant nor App. vember 2003. It does not de- Thus, psychological expertise. this evidence injury, scribe the circumstances of Claimant's “significantly probative” was not and the ALJ severity, its or the duration of its See effects. discounting did not err in it without com- evidence, id. Even if we were to consider this Astrue, ment. v. 509 F.3d Frantz vague en- such notation'—in context the (10th Cir.2007); 20 C.F.R. see also represent tire record—cannot evidence Claim- 404.1527(d). cognitive ant suffered from a disorder that is Flaherty, on its 515 F.3d substantial face. tersely 23. Dr. Wallace’s note states that 1071; Hawkins, 113 F.3d at 1167. inju- Claimant had "closed head some kind of base, challenges mental dis- disorder. At alleged Claimant’s the ALJ’s conclusion that her condition ability. in changed, respect, has not material engaged since she last in full time work. at 9-10. the ALJ also suggests to consider whether her failing erred in combination,

psychological impairments, impairment. to a listed equivalent were allegation that the ALJ failed only listing suggests her But the by the imposed consider limitations arguably meet is list- impairments mental physicians is an isolated com- upon based 12.05(C). above, As noted that conten- ing opinion, ment in the ALJ’s which states: siupra Part IY.A.1. tion is meritless. See of the record in this case re- “[A] review argue To the extent Claimant seeks veals no restrictions recommended combination, equal any impairments, treating Contrary doctor.” Id. at 30. listing, support she has failed to other assertions, this statement any “developed argumen- contention with was not error. At her administrative City Albuquer- Hardeman v. tation.” hearing, Claimant told the ALJ that the Cir.2004). (10th 1106, 1122 que, 377 F.3d “only currently doctor” she saw for treat- issue, appellant lists an but “Where Bethany ment was “Dr. Wallace.” Id. at argument, support does not the issue decision, explicitly his the ALJ appeal.” is waived on Christian issue to Dr. “the claimant’s referred Wallace as Secondary Sch. Heritage Acad. Okla. Therefore, treating physician.” Id. at 28. Ass’n, Activities pointed out that when “the treat- Cir.2007); § 405(g) also 42 U.S.C. see ing doctor” had recommended “no restric- a district court’s (stating that we review tions,” merely observing he was that Dr. “in ruling security appeal in a social imposed any had not restrictions Wallace civil judgment manner as a other same Id. at 30. on Claimant’s work activities. actions”). therefore, We, to con- decline Indeed, record reflects Wal- sider this issue further. operate lace never recommended Claimant under sort of restrictions. B. argues To the extent Claimant the that the Claimant’s second contention is ignored physician-imposed ALJ other concluded, four, incorrectly step restrictions, similarly work her claim lacks capacity that her residual functional ren- matter, physi merit. As a factual no active performing past of capable dered her cian-imposed restrictions existed for the relevant work as a telemarketer. de- Undoubtedly, Dr. Finn ignore. ALJ to termining a claimant’s residual functional on work restrictions in placed Claimant capacity, the ALJ must consider all of a 1997, but—as Claimant’s counsel admitted impairments, claimant’s whether or not court—Dr. Finn later before the district

they 20 are “severe.” See C.F.R. 551, restrictions. id. at lifted these See 416.945(a)(2). Hence, argues 2001, concluded that 759. In Dr. Roberson (1) in failing the ALJ erred to consider no work restric permanent Claimant had on physician-imposed various restrictions injury. as a result of her 1999 See tions (2) activities; physical her work restric- an effort appears id. at 330. In what to be recommended after her functional ca- tions however, Finn, (3) to Dr. Dr. Rober examination; to defer impact of pacity erroneously stated that Claimant son alleged impairments, specifical- mental headaches, to follow the restrictions ly fatigue, Claimant’s should continue 330, here, appeal on Dr. Finn in 1997. id. at waived: “The issues raised imposed however, reflects, concern mental parties impairments; and the 771. The record therefore, go the Court will not dispute, do that these restrictions were not through pre- all of the medical evidence Finn. lifted impairments sented with to the failure discuss Accordingly, the ALJ’s subject appeal.”24 that are not the rescinded work restrictions Accordingly, Id. at 766-67. the district Haga error. cannot be reversible solely court reviewed ALJ’s “assess- (10th Cir.2007) Astrue, 1205, 1207 482 F.3d mental capability.” ment of [Claimant’s] only (noting required that an ALJ is uncontroverted evidence he “discuss the “perfunctory presentation” The of rely signifi upon, not to as well as chooses argument concerning her resid rejects”). cantly probative evidence he No physical capacity “deprived ual dis [the “uncontroverted evidence” exists opportunity analyze court of the trict] subject to be to work Claimant continues and rule on this issue now raised in detail restrictions and rescinded restrictions do appeal.” the first time on Tele- “significantly probative evi not constitute Commc’ns, Inc. v. Internal Comm’r concerning dence” Claimant’s current con (10th Revenue, 104 F.3d Cir. Consequently, simply dition. ALJ was 1997). Because Claimant failed “to state not to discuss these limita required theory required with the speci below ability tions Claimant’s work. ficity,” preserve” she has “failed to this precedents issue for our review. Id. Our generally establish that we do “not consid argues Claimant also argued er an issue raised in the but adequately ALJ failed to consider district court.” & Fox Nation Mis Sac physical limitations recommended as re Pierce, souri v. 213 F.3d capacity sult of Claimant’s functional eval Cir.2000); see also Ecclesiastes 9:10-11- Presumably, allegation uation. refers Co., Holding Inc. v. LMC 497 F.3d capacity to the results the functional (10th Cir.2007) 1135, 1141 (noting that the performed by evaluation David Sehlender “ ‘vague ambiguous’ presentation of a Claimant, however, July failed theory the trial before court” does not True, preserve this issue for our review. “preserve theory an appellate is attempted Claimant’s counsel to raise this sue.”); States, Harrell v. United court, point the district but Claimant’s (10th Cir.2006) (declining (several times) merely alleged counsel appellants address an issue where “did not “objective the ALJ failed consider any “in develop argument” point the App. medical evidence.” at 760-61. Be court”). case, district In this we see no present cause Claimant’s counsel failed to depart general reason to from rule. any argumentation developed physical impairments, contrary, the dis Claimant’s On the substantial reasons ex- obviously precedents trict court viewed this issue as ist to enforce our waiver here.25 Indeed, specifically ... the district court stated ered a ‘second-shot’ forum where second- “challenges” presented that the "on ary, back-up may theories be mounted for the appeal” directly were "not related to the encouraged first time. Parties must be physical injuries that suffered.” See [she] give everything they’ve got it at the trial level. App. at 775. Thus, to, presented an issue must be consid- by ered and decided trial before it the court preserve integrity 25. "In order to structure, appellate we should not be consid-

1067 case, court explicitly district resentation and malingering” by submitted “declined to address” the ALJ’s assess- Evans, Lesnak, Drs. and Kras.27Id. at 24- capacity ment of physical Claimant’s be- 30; Chater, Winfrey see also v. 92 F.3d cause ... was “issue waived.” Cir.1996) 1020 (“Credibility de- M.D., P.C., v. Fred A. Ray, Schrader 296 peculiarly terminations are province (10th Cir.2002). We, F.3d n. 975 6 the finder of fact ... and we will not upset therefore, refuse to address Claimant’s ar- such they determinations sup- [if are] gument appeal. the first time on See evidence.”). ported by substantial There- Porter, v. United States fore, ALJ, quite reasonably, based his (10th Cir.2005) (“We 1141-42 do not con- evaluation of Claimant’s residual functional presented sider issues not to the district capacity predominately objective on the court, waived.”). they are deemed evidence the record. App. See at 28-29. challenges adequacy Claimant also a. alleged of the ALJ’s consideration of her Claimant argues the ALJ failed to mental impairments, specifically her head adequately migraine consider her head aches, fatigue, pain disorder.26 Our recognized aches. The ALJ that Dr. Finn review is focused first and foremost on diagnosed Claimant with “tension head whether the ALJ’s supported decision is aches,” rather than migraines. at 24. Id. by substantial evidence and we conduct He noted that treating Claimant’s current inquiry via a meticulous examination Wallace, physician, Dr. never indicated Flaherty, of the “record as a whole.” Claimant suffered from migraines. See id. 1070; F.3d at 405(g). see also U.S.C. Further, the ALJ observed that required every The ALJ is not to “discuss Claimant’s Astrue, treating physicians did not piece of evidence.” Frantz v. (10th Cir.2007). place any her on specifi medication used On the contrary, generally cally migraines. we will to treat find the ALJ’s See id. at 23. adequate decision if it discusses the “un- Clearly, the ALJ’s discussion Claimant’s controverted evidence” the ALJ chooses alleged migraines was more than adequate. rely not to upon any “significantly Flaherty, 515 F.3d at 1070-71 (approv probative evidence” the ALJ decides to ing the ALJ’s discussion of a claimant’s reject. facts). migraines under similar Given that diagnosed Claimant was never with mi decision,

In his the ALJ discussed graine treating physi headaches subjective complaints of head- cians or aches, prescribed medication to treat fatigue, some detail. condition, ALJ, however, sup such evidence The substantial found testimony “fully ports discounting not to be the ALJ’s of Claimant’s reports credible” based on the of “misrep- complaints migraines. appeal.” Overwhelming can be raised on de supports Torres la record evidence Cruz Maurer, (10th Cir.2007). 1023 the ALJ's that Claimant’s testimo- conclusion Thus, ny fully light was not credible. Headaches, fatigue, and somatoform disor- record, any entire evidence that Claimant's only impairments der are the mental Claim- testimony "significantly was is not reliable See, e.g., ant raised before the district court. probative” and the ALJ did not error in fail- App. Accordingly, these are the ing to discuss it. only impairments preserved mental for our supra review. See Part IV.B.2.

1068 medical treatment course of Claimant’s

b. conserva- “essentially routine was and/or the ALJ argues also also at 28. He App. in nature.” tive Other fatigue. account for her failed to impairments that Claimant’s explained lit subjective complaints, than Claimant’s the same level of “approximately were at relates tle evidence in the record severity to the ... date” Claimant prior The ALJ sleeping. problems Claimant’s Id. at 29. alleged she became disabled.28 testimony discounted Claimant’s properly impairments Because Claimant’s —includ- fatigue based on sub regarding her her ing pain prevent her disorder —did not in the record —which evidence stantial and the nature working past, from in his deci thoroughly discussed had not severity impairments of these engaged in “ma indicating Claimant sion— reasonably changed, the ALJ significantly misrepresentation.” App. or lingering condition would concluded Claimant’s 30; 24-29. The scant ob also id. at see her performing her from prevent relating in the record jective evidence sup- The ALJ work. See Id. relevant fatigue or is not sleeplessness prec- with one of our ported his conclusion “ Thus, probative.” the ALJ “significantly edents, ‘disability’ re- which noted specifically dis declining not err in inability did more than the mere quires 30; see also pain.” cuss this issue. work without Id. (10th Bowen, Ray v. case, generalized ex- any the ALJ’s Cir.1989). decision, under the cir- planation for his case, the the facts of this ALJ’s Under cumstances, Because he was sufficient. was analysis pain of Claimant’s disorder testimony was not concluded Claimant’s allow the ALJ precedents Our sufficient. credible, focused his atten- fully the ALJ analysis where engage in less extensive con- diagnosed “medical tion on Claimant’s medical evidence con “none of the record examining at 28. After dition.” conclusion that claimant [a] flicts with [his] history, the extensive medical light work.” Howard perform can “difficult that it would be ALJ concluded Barnhart, 379 F.3d Cir. limitation” degree of [the] to attribute 2004). Here, all of the the ALJ “discussed alleged experienced she —includ- detail.” medical evidence some relevant napping ing reports of extensive —to the ALJ Id. This discussion demonstrates impairments. Id. at her identified credibility considered the Luna factors 416.905(a) (stat- 28; also 20 C.F.R. see pain, including Claim assessing Claimant’s disability must be ing that a claimant’s (2) (1) medication, attempts to obtain ant’s or physical on a “determinable predicated (4) (3) contacts, relief, frequent medical impairment”). Clearly, substantial mental (5) activities, daily description of conclusion. supports record evidence Branum, 23-31; credibility. App. at noted, F.3d at 1273-74. As the ALJ c. for his consideration the record submitted suggests also the ALJ treating any opinions contain from did not indicating disorder. The essentially ignored examining physicians ALJ, however, totally disabled.29 stated that Claimant specifically claim, disability disability, purposes alleged for of her application, Claimant In her filed her 2001—when Claimant is October Because became disabled in December 1999. C.F.R. application benefits. See 20 disability benefits cannot be awarded for § 416.335. period prior the date a claimant files an Security application Social Adminis- with the by Dr. Wal- prescription written 29. A short tration, alleged onset date of Claimant’s lace, pool give Claimant access in order to at 30. Where —as here—-the “ALJ does ment concluding Claimant has “mild reject weigh evidence unfa- not need daily activities, restriction in living mild in a vorably order to determine claimant’s difficulties in maintaining social function- capacity], functional the need for [residual ing, moderate difficulties in maintaining Howard, express analysis is weakened.” concentration, persistence or pace and no 379 F.3d repeated episodes decompensation.” Chater, (10th App. at Accordingly, 79 F.3d 1007 the ALJ limited Clifton Cir.1996), in which we first established Claimant’s residual capacity functional sufficiently explain that ALJs must involving work complexity “less judg- rulings, reasons for their not to is the ment that could be learned in up to three contrary. Our decision in was months,” required which working no more Clifton predicated on the fact that the ALJ’s deci- than “a total of approximately six hours sion stated but “bare conclusion ... eight workday.” hour Id. at beyond meaningful judicial review.” sum, substantial supports evidence Fischer-Ross, F.3d at ALJ’s evaluation of Claimant’s mental re- case, reasoning this the ALJ’s is far more sidual functional capacity. On appeal, we Howard, extensive. 947 may “reweigh try the evidence or basis). (distinguishing on this Clifton issues de novo” order to advance a Moreover, previously rejected we have “a different Grogan, view. 399 F.3d at 1262. that, construction of based on a Clifton whole, reading of the ALJ’s decision as a C. would lead to unwarranted remands need- Finally, suggests that the ALJ lessly prolonging proceed- administrative evaluated Claimant’s credibility under an Fischer-Ross, ings.” improper standard. She bases this argu- Here, a remand pur- would serve no other ment on the ALJ’s statement pose needlessly than to prolong protract- allegedly daily “[Claimant’s] limited activi- ed course of proceedings, which has al- objectively ties cannot be ready spanned any verified years. over seven degree certainty.” reasonable App. at Further, Claimant’s extensive ALJ, however, 28. The made this state- history demonstrates that sub to, of, ment subsequent light and thus in stantial evidence supports the ALJ’s deci his adverse determination of Claimant’s sion in pain Claimant’s disorder. credibility. See id. The context of the has, fact, remarkably received ALJ’s comment makes this distinction conservative treatments for her pain. The clear: record also shows that pain dis undersigned The does not find the testi- longstanding order is in nature and -that mony claimant, that she is unable condition, regard, had not seri activities, full sustain time work ously declined since she performed last full fully Although to be credible. the claim- time work. To the extent sug the record ant gests daily has described activities which hinders her mental faculties, limited, fairly substantial evidence are two supports weigh factors ALJ’s decision to account impair- for this against considering allegations these YMCA, therapy decision, period at the could be read to this before the ALJ issued his we effect, per- may as it supra states Claimant is "disabled consider it. See Part IV.A.2.b.

manently.” App. at prescription, 16. Claimant submitted Such an obscure which contains however, agency findings, this note to the after the ALJ clearly issued no medical is insuf- change analysis. his decision. Because this note relates to ficient to our at 1071. We have ev- Flaherty, 515 F.3d finding in favor of strong evidence be First, allegedly by this well-estab- ery reason to abide claimant disabled. objec- cannot be entirety, activities In its daily principle limited lished here. de- any reasonable with tively and his discussion of the evidence “ALJ’s verified Secondly, if the even certainty. gree demonstrate for his conclusions” reasons truly are as daily activities claimant’s considered Claimant’s adequately that he to attrib- alleged, it is difficult limited as Flaherty, 515 F.3d alleged impairments. to the degree of limitation ute that Fischer-Ross, 1071; see also condition, in view of claimant’s medical (evaluating the substantial at 730 whether in this decision. factors discussed other ... met “based on evidence test had been added). (emphasis Id. whole”). Accord- as a the ALJ’s decision above, ruling of the dis- ingly, the ALJ’s statement we AFFIRM the As shown could not daily limitations Appellant’s proceed that Claimant’s motion trict court. reason- “objectively verified be denied. pauperis in forma is certainty” did not state degree of able the ALJ made his ad- by which standard HOLLOWAY, Judge, dissenting: Circuit credibil- determination

verse disposition to concur in the Being unable Rather, the ALJ’s statement ity. I dis- majority opinion, respectfully observation that merely a common sense my are My reasons for conclusion sent. not treat Claimant’s testi- the ALJ would stated below. disability “strong evidence” of her mony as that Claim- prior his determination due to Here, from appeals Joan Wall “fully credible.” testimony was not ant’s application supple- the denial of misconstrues simply Id. Claimant (SSI) un- security income benefits mental suggesting otherwise. comment ALJ’s under jurisdiction Title have der XVI. We 405(g). Because the adminis- that an ALJ’s credi U.S.C. recognize We (ALJ) “closely judge provide and failed to bility determination must be trative law record affirmatively weighing linked” substantial of his explanation sufficient Barnhart, Hardman support evidence. his balancing of the evidence Cir.2004). In this four, 678-79 I step step three and findings both case, just did that. his deci the ALJ for additional would reverse and remand affirmatively sion, clearly and the ALJ proceedings. determination of Claim

linked his adverse evi credibility to record ant’s substantial History Facts and Procedural engaged in ma indicating Claimant dence the exten- only I review a few facts from misrepresentation. lingering case. Claimant was sive record 24-30; Winfrey, prec 92 F.3d at 1020. Our 5, 1942, February making her born on more, “limit require and our edents do years Aplt. Admin. sixty-five old now. from scope precludes [us] of review ed ninth finished the or App. at She substituting reweighing the evidence school, completed G.E.D. grade tenth agency. that of the” judgment for [our] hairstyl- age forty, completed at the F.3d at 1071. Flaherty, Id. at 42^13. ing cosmetology school. V. in November IQ full-scale was tested Her has been 2001 to be 67. Id. 238. She Where, here, indicates he the ALJ three times and lives and divorced married prac- our all evidence has considered Springs in a townhouse Colorado “at word.” alone [his] tice is to take the ALJ 41-42, 97, 236, by son. Id. at provided neck, ries to her back and and she was 241. by Finn, treated Kenneth P. M.D. Id. at 1999, August 667-70. she fell in the jobs. has had several Her restroom working while at Telequest. Id. past relevant work was as a telemarketer 44, 173, 187, at 270. slipped She in some at from MCI WorldCom October 1997 to floor, water on falling forward onto her 1998, 62, 111, 119, April Id. at and as a 44, 173, knees. Id. at 270. When she representative customer service at Tele- get tried to up, she fell backward onto her quest April August from 1998 to or Octo- back 173, and buttocks. Id. at 270. She 1999, 111, 119, 145, ber Id. at 175. She Finn, by 538-40, was treated id. at and voluntarily testified that she worked elev- other doctors. An MRI revealed a poste- MCI, at day including en twelve hours a tear, 538, rior medial meniscal id. at which on holidays, some weekends and because prompted a debate among doc- claimant’s job she loved the the people. and Id. at tors as to whether she should have 62, surgery stopped She said on her knees. Their conclusion was that working September 1999 after she was not, she should either 43-44, because it injured in a fall at work. would not Id. 61- reduce her pain or complications 62. Around the because same time that she was likely diabetes, see, were injured, because Telequest closed its office Colo- 68, e.g., 252-55, 257, 259, 263, id. at Springs. 317, rado 174. pro- Id. at tectively application physical filed her for She went therapy SSI bene- 9, 2001, several alleging disability fits on October months. Id. at 173. In March 2002, 30, 1999, beginning on December due to claimant fell when her son and his knees, “pain in both legs, both and her wife took her on vacation. Id. at 57-58. back, neck, lower spasms, memory tripped hotel, stiff She rug on a at the falling problems, sleep problems, melli- diabetes and breaking her left arm in four places. II Type migraine tus and 57-58, headaches.” Id. Id. A hearing was before an held adminis- lengthy (ALJ)

The administrative record con- 20, trative judge May law tains dating claimant’s medical records hearing, After the the ALJ denied benefits years, back more than ten showing visits ain written decision filed on October to or review numerous medical profes- Noting 2003. Id. at 20-33. evidence stat- for both physical prob- sionals and mental ing injured that claimant was not in her lems. These records contain evidence of beyond injuries, 1999 fall her preexisting claimant’s ap- medical treatment quit working, he concluded that she parently resolved individual medical prob- fall, Telequest because of the but because (e.g., lems hysterectomy carpal and tunnel closed its office Colorado Springs release), as well as evidence of chronic or paid wages. she was lost Id. at 29. He degenerative problems (e.g., dia- determined at one that step claimant had betes, hypertension, problems, knee de- not application worked since she filed her pression, pain). for SSI benefits. Id. at 21. He concluded explanation step without two “[t]he

Claimant’s medical records also docu- supports finding” evidence that claimant ment her extensive attempts to resolve neck, back, injuries had suffered injuries to her resulting from series of acci- knees, nineties, dents. she had a somatoform she was in a car disorder. Id. He step accident—another vehicle rear-ended determined at three stoplight. satisfy specific vehicle as she sat at a that claimant did not 184, 270, 667. inju- The accident caused listings spine, either for disorders of the P, adequate support might accept mind Subpt. Pt. 1.04, 20 C.F.R.

Listing disorder, Perales, 1.04, 1, § or for somatoform Richardson a conclusion.” 12.07, or, 12.07, generally, id. Listing 28 L.Ed.2d 91 S.Ct. U.S. at Aplt. App. Admin. listing. omitted). any other (1971) “In order (quotation 842 that step at four concluded 22. The ALJ deci- [agency’s] whether the to determine functional the residual retained claimant evidence, by substantial supported sion is (RFC) range full of seden- for a capacity the record. meticulously examine must we approximately of work, “sitting a total tary However, reweigh the evi- may neither we workday, with eight in an hour six hours that our discretion for dence nor substitute breaks, walking and occasional normal Musgrave, 966 F.2d [agency].” of the further at 30. He standing.” Id. and/or mental condi- that “claimant’s determined complexity of less permit work tion would Appeal Issues on in up be learned judgment that could Id. at 31. Based on three months.” that ALJ argues appeal the hearing from a at the evidence adduced of the five- steps erred at three four (VE), ALJ concluded expert vocational v. sequence. See Williams part evaluation job past to her claimant could return that (10th Bowen, 748, 750-52 Cir. those limitations. a telemarketer with 1988) five-part evaluation se (discussing result, four step he determined at Id. As a ALJ argues that quence). Claimant and was not claimant was not disabled step finding: a three proper failed to make Id. entitled to SSI benefits. (1) her men by failing to consider whether arguments on the to the addition equaled met or one of impairments tal appeal she made her existing record retardation, Listing listings for mental Council, presented claimant Appeals 12.05C, P, Subpt. App. Pt. 20 C.F.R. evidence, previously some additional (2) 12.05C, listing; by another fail agency, to the that she had been submitted the record with ing develop injury a closed head diagnosed with other mental disorders cognitive her by cur- memory problems her short-term disorder; and in addition to somatoform doctor, who did not consider her be rent (3) impairments by failing to consider 12, 14, 15. This malingerer. a Id. argues also that the in combination. She part additional evidence was made erroneously step found at four Nevertheless, Ap- record. Id. at 9. capable performing of review, making the denied peals Council (4) by relevant work as telemarketer: final decision. agency’s decision the ALJ’s treating physicians find that her failing to in the dis- at 6-8. Claimant filed suit ability to issued restrictions on her had court, relief. trict which also denied (5) work; by failing to consider restrictions appeal. Claimant filed (6) assessment; agency’s on the RFC degree a “reasonable erroneously applying Standard Review certainty” capacity standard to her [agency’s] court reviews the deci- “This tasks, Aplt. Admin. perform household findings are to determine whether the sion (7) 28; by failing to consider App. evidence and supported by substantial other diagnosed impairments mental legal [agency] applied correct whether agency The than disorder. somatoform Sullivan, v. 966 Musgrave standards.” are harmless. argues errors Cir.1992) (quotation F.2d review, my claimant’s assertions omitted). Based on “means Substantial evidence of error have merit. evidence as reasonable such relevant agency urges Discussion The us to conclude that equal claimant cannot meet or Listing Step Three 12.05C because the already ALJ has found three, stepAt the ALJ considers wheth- that she did not satisfy the “B” criteria of impairments equal er a claimant’s meet or 12.07, Listing Aplt. Admin. Chater, impairment. a listed Clifton foreclosing a finding that she satisfies the (10th Cir.1996). “B” criteria of Listing 12.05. An examina- the, argues light diagnosis by Listings, however, tion of these two shows Ph.D., Stockdale, Steven that she had a that Listing 12.05 has neither the same NOS, major cognitive depression disorder structure nor the “B” same criteria as recurrent, anxiety disorder NOS and a Listing Therefore, 12.07. the agency’s ar- 67, IQ full Aplt. App. scale of Admin. gument is without merit. 239, the should have ALJ considered agency argues The also that claimant equaled whether she met or one of the has presented any not satisfy evidence to listings retardation, Listing for mental 12.05, called, thé first sentence in Listing 12.05C, 404, P, Subpt. App. 20 Pt. C.F.R. alternatively, “capsule the definition” or 1, 12.05C, § listing. or another claims She See, “diagnostic the description.” e.g., 20 equals Listing or she meets 12.05C. C.F.R., 404, P, 1, Subpt. Pt. App. Aplt. Opening Br. at 13. § capsule 12.00A. The requires definition me, To decision does not re ALJ’s claimant to show “significantly subaverage flect that he or not considered whether general intellectual functioning with defi 12.05C, equaled claimant met or Listing cits in adaptive initially behavior manifest may which understandable claim be since during i.e., ed the developmental period, argue hearing ant did not at the that she the evidence demonstrates or supports on equaled Listing. met or this This does not impairment set of the age before 22.” Id. court, effect waiver see Sims v. § agency’s 12.05. The argument us asks 103, 108-12, 2080, Apfel, 530 120 U.S. S.Ct. overstep authority, our however. “[A]s (2000), may 147 only L.Ed.2d 80 but ex acting a court within the confines of its plain why Listing the ALJ did not address authority, administrative review we are 12.05. The failure ALJ’s to consider List empowered only to ‘review the ALJ’s de error, however, ing 12.05C was an because and, cision for substantial evidence’ ac showing record contains some evidence cordingly, position ‘we are not in a requirements claimant satisfied the of factual ” draw conclusions behalf of the verbal, Listing 12.05C to show a “valid Allen, (quoting ALJ.’ 357 F.3d at 1144 performance, IQ through or full scale of 60 Massanari, 1211, Drapeau v. 255 F.3d physical 70 and a impair (10th other mental Cir.2001)). 1214 Because the ALJ imposing signifi ment an additional and 12.05, expressly Listing did not consider I cant work-related limitation of function.” ap would remand for the ALJ to make P, 1, Subpt. 20 C.F.R. Pt. instance, propriate findings in the first § It appro 12.05C. is for the ALJ to make duty which is his do. 42 U.S.C. priate findings 405(b)(1). E.g., the first instance. remand, § For the I note that Barnhart, Allen v. 357 F.3d 1144 previously pointed' we have out that (10th Cir.2004); Clifton, 79 F.3d at 1009- agency adopted has never a standard of 405(b)(1)). (citing 10 42 U.S.C. There measurement for the term “deficits in fore, I question would remand the of adaptive functioning” capsule defi whether claimant equals Listing Listing meets or nition of Barnes v. Barn 12.05. hart, to the Fed.Appx. 12.05C ALJ. Cir. ALJ argues errone- 2004). an publicly The Commissioner per- ously capable filed that she was after claimant found in April nounced benefits, a tele- that the relevant work as forming SSI application organizations failing to find that her major professional by marketer four has each agency mental retardation and the con- dealing treating physicians for meas standard different restrictions on sulting physician somewhat issued functioning,” adaptive uring “deficits ability to the ALJ was work. While declined expressly Commissioner but the necessarily to make his RFC bound them. 67 one any particular adopt restrictions, finding consistent with such 2002). 20,018, 20,022 (Apr. Fed.Reg. restric- agree I that evidence of such do use of Rather, “allow[s] the Commissioner record, in the and the ALJ tions exists recog methods any of the measurement rejected explain why he required professional and endorsed nized at 1009-10. For Clifton, it. 20,022. Fed.Reg. at organizations.” record contains recommen- example, the a stan therefore should choose The professionals dations from several over notify claimant dard of measurement years that claimant should period it is. what day. E.g., change positions during the (Finn, 1997, by Aplt. App. that erred Admin. at 597 I cannot conclude the ALJ change positions every since any listings, other claimant should failing to consider (Sehlen- minutes), listings 506 specify forty-five sixty not other claimant does der, equals 2000, recommending or meets. that do arguably she claimant which sedentary “frequent breaks work with that ALJ erred argues also the (Rober- day”), throughout the work 330 failing develop step by three at son, 2001, February claimant fol- should cognitive to her record by Dr. Finn low restrictions set out I disorders. Because would other mental (Kras, 2001, 1997), claim- 244 December error, I would based on remand Clifton posi- may ant “need to fluctuate between it the ALJ to what determine leave eight- an during tions” to work maintain may be re development record further day). testified that she hour Chater, See, v. 113 e.g., Hawkins quired. Lazy an on a can sit for hour or two (10th Cir.1997). 1162, 1167 F.3d 54, days are Boy, id. but that some at argument is step-three final she better than others and sometimes by to consider failing the ALJ erred that than, what, maybe “can’t even sit more It goes in combination. impairments taking, you 30 or 40 minutes without that, remand, claimant’s saying on without medication,” 55, know, at id. singly be impairments must considered can for at least sit with medication 42 U.S.C. combination. taking a fifteen-minute an hour before Sullivan, 423(d)(2)(B); Hargis get her around and circu- break walk (10th Cir.1991). 1482, 1491 lation id. going, Step Four why reject- he explain The ALJ did not should take ed the that claimant evidence four, I am convinced step At sitting. This frequent breaks from omis- RFC, determine the claimant’s should error, because “in addition to sion was requirements of the claimant’s his de- discussing supporting evidence work, they match. and whether relevant cision, un- also must discuss the Chater, the ALJ 1017, Winfrey v. he chooses (10th Cir.1996). evidence num- controverted Claimant makes rely upon, significantly probative well as arguments step. of valid at ber (10th Cir.1995) 387, Clifton, 79 F.3d at rejects.” (quotation he omit- evidence ted). response The VE’s to claimant’s including a restriction attorney’s question argues Claimant also that the ALJ erred sitting failing cannot overcome this be- by failing to consider her diagnosed mental finding, specific ALJ made no cause the impairments other than somatoform disor- otherwise, change needed to that claimant RFC, agree. der. I “In assessing frequently. The ALJ found that positions adjudicator must consider limitations and breaks,” normal Aplt. she could work “with imposed by restrictions all of an individu- 30, App. Admin. defined the VE to impairments, al’s even those that are not ” morning a fifteen-minute in the be break 96-8p, 374184, ‘severe.’ S.S.R. 1996 WL thirty-minute and afternoon and a break at *4. The record includes numerous refer- professionals for lunch. Id. at 77. Several ences to diagnoses touching on claimant’s change posi- recommended that claimant state, see, including depression, mental that, than and claim- frequently tions more 177, 184, e.g., Aplt. Admin. ant testified she needed to tvalk 246-54, 256-57, 260-64, 550, 645; anx- sitting around for fifteen minutes after see, iety, 253, 264-65, 539, e.g., id. at hour, get going. her circulation 579; see, attacks, panic e.g., id. at 55. The VE testified the telemark- 246-48; disorder, see, e.g., id. at job an employee eter would allow “to take 194, 239, 244, 246-69; disorder, cognitive shift, if postural but that individual has see, 239; fear, see, e.g., e.g., id. id. at away they’re doing to move from whatever 246-48, 250, 253, 264-65; and closed head area, no, they in the then productivity injury memory with short-term problems, at 77. I would not be able to do it.” Id. Id. at 12. The explained ALJ should have cannot conclude that it was harmless error why accepted diagnosis he of somato- fail explain why the ALJ to he rejected form diagnoses disorder but rejected that the evidence claimant should of other impairments, mental such as do I prolonged sitting, and would re- Clifton, these. at 1009-10. mand this issue to the ALJ. point, On I emphasis this note the ALJ’s argues Claimant also that the ALJ erred on a March 2000 comment James H. Evans, by discounting testimony her depression her dai- Ph.D. that claimant’s ly fairly they “debilitating,” activities are limited because was not but that she was objectively any “very, very could not “be verified with difficult to motivate to do much degree certainty.” of Id. at of at anything point,” reasonable 28. was “too com- argument living wages being This has merit. I am unaware off lost and not fortable agency any Aplt. of—and the has not motivated to return to work.” Ad- identified — statute, ruling, Dr. regulation, Although or case law di- min. 29-30. Evans comment, “objectively recting verify” by did make that Id. at he also certainty” degree “reasonable whether a stated in the same note that claimant suf- daily claimant’s activities are as limited are fered “intractable reactive de- [and] Id., pression” as he or she asserts. The standard for an and in a number of subse- last credibility quent continuing through Dr. Evans noted her concern that she was financially, Id. at and her

struggling generate back to work to “get desire to income,” Id. at 271. These are her normal in the record examples of inconsistencies through should resolve evidence, weighing balancing merely stating conclusions. I Accordingly, respectfully I dissent. proceeding would reverse and remand this directions to re- to the district court with proceed- agency mand to the additional my disposi- ings consistent with views tion. adverse determination is not notes his 15, 2000, testimony August whether the claimant’s can be note on that claimant Rather, fear, objectively anxiety pain, verified. an adverse suffered “intractable (1) credibility depression,” determination must and mild to moderate id. at be 246; 247-57, “closely affirmatively linked” to the see also id. at 259. In other (2) evidence, office, based on evidence that is notes from his he or his staff stated Chater, following through “substantial.” v. that claimant was on his Kepler to become plans or her own instructions Sunday ZOKARI, 266, 275, 282, A. Plaintiff- 248, 261, Id. more active. Appellant, to these inconsisten- In addition cies, that claimant Evans’ comment Dr. is inconsistent with to motivate was hard Aus- 2001 from E.J. from June evidence GATES, Secretary of Robert M. man, 208. Ausman D.O. Id. at Defense, Department that claimant’s diabetes May wrote Defendant-Appellee. extremely poor control because was and that he told her No. 07-6173. noncompliance absolutely serious” “get needed to Appeals, Court of United States He re- about diabetes. Tenth Circuit. that claimant “has one month later corded medication,” had actually taking been March exercising trying weight, lost was active, stay asking questions about the following, to be supposed diet she was was better. Id. at pressure that her blood in the record I also see no information long to how claimant received lost Telequest’s closing; from I doubt wages layoff benefits from would indefinitely. continue Claimant testified hearing that she received assistance Colorado, but she would from the State of rather if she could. Id. at 72. And work

Case Details

Case Name: Wall v. Astrue

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Mar 3, 2009

Citation: 561 F.3d 1048

Docket Number: 19-8050

Court Abbreviation: 10th Cir.